A transparency hang-up: Are public records in Utah hidden on private phones?

Fallout from Bridal Veil Falls dispute shows that Utah County lacks a policy to verify that elected leaders aren’t tucking away government messages on their cells.

(Al Hartmann | The Salt Lake Tribune) Utah County Commissioner Bill Lee, center, begins a commission meeting in this file photo. A records fight has erupted over whether the commissioner's private cellphone contains public records.

Are Utah’s elected officials walking around with public records in their pockets that never will see the light of day?

It’s a question that emerged in the wake of the recent Bridal Veil Falls controversy.

Last year, activist Mark Allen filed a public records records request, which revealed Utah County Commissioner Bill Lee had been quietly working with developer Richard Losee to potentially sell a portion of the county-owned landmark. Emails showed Lee had negotiated with Losee on the deal since at least 2018.

Losee then donated thousands to Lee’s “Stop Prop 9” political issues committee in 2020, which successfully blocked an attempt to change the county’s legislative branch from a commission to a council.

Allen wanted to know if there was a connection the emails didn’t reveal, so he also requested Lee’s text message exchanges and a log of his cellphone calls with Losee.

“I worried there was a quid pro quo,” Allen said in an interview. “You know, ‘Give me money so I win the election, and we’ll work out Bridal Veil Falls.’”

Lee declined to comment for this story.

The Salt Lake Tribune filed a similar request for Lee’s text messages in December 2020. Both requests were denied, with Utah County arguing that because Lee’s cellphone is not paid for by the county, the county did not “prepare, own, receive or retain” the commissioner’s texting records.

“All a commissioner has to do is say, ‘I don’t have anything,’ and they can’t verify it,” Allen said. “That means, right now, we only know the tip of the iceberg because elected officials use their cellphones a lot.”

Then-Commissioner Nathan Ivie led a successful, last-minute effort to preserve Bridal Veil Falls under a conservation easement before he left office. But Allen wasn’t finished with his public records fight. He appealed the denial all the way up to the State Records Committee, which listened to his argument last Thursday.

“A handshake and a wink and a ‘trust me’ — that’s last decade,” Allen told the panel. “We need better.”

Texts sent on personal devices are public records

Utah’s Government Records Access and Management Act, or GRAMA, defines a record as “a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics” that’s made by a government entity.

A decade ago, Utah lawmakers stoked the public’s ire by trying to exempt their text messages and other electronic communications as public records under GRAMA, alleging nosy reporters were going on “fishing expeditions” and trying to embarrass them. That legislation, HB477, was repealed after a swift backlash.

Today, there’s no dispute that a county commissioner’s texts count as a public record if the messages are used to conduct public business — even if it’s on a personal cellphone.

In 2019, for example, a San Juan County resident noticed a commissioner was texting his attorney during a public meeting. She requested the texts but was denied, due partly because the commissioner’s representatives said they didn’t have anything that was “responsive” to the request.

The State Records Committee, however, determined the commissioner probably did have those records, since people saw him texting. And they ruled that if he was sending those messages in his capacity as a government official, they should be handed over under GRAMA.

“It would be inappropriate,” the committee wrote, “for a public official to attempt to circumvent the requirements of ... GRAMA by using a private device.”

That San Juan County case came up as Allen and Deputy Utah County Attorney Adam Beck presented their arguments to the committee last week.

“At San Juan County, you could see that there was a text message [conversation] going,” Beck said Thursday. “... In this matter, in Utah County ... there hasn’t been any evidence provided that Bill Lee sent any text messages to Richard Losee.”

The attorney said county officials asked Lee’s office multiple times whether the commissioner had text messages to and from Losee over the course of Allen’s appeal.

“Every time we went to them,” Beck said, “they said they didn’t have anything that was responsive. And so that’s where we are.

An ‘epicenter of ethics?’

Beck added that the issue isn’t specific to Utah County — records managers across the state simply can’t seize private devices to verify that no records are present.

Allen called on Utah County to become an “epicenter of ethics,” and provide elected officials with separate cellphones that can be regularly audited, searched and cataloged.

“This provides protective measures,” Allen said. “This provides a separation of personal commingling of kids, grandkids and cat pictures with official government records.”

On the state level, legislators are offered a government-issued cellphone to use for public business (although lawmakers can refuse it and still use their private phones), a representative for the Utah Senate confirmed.

“This request really hits ... every elected official that’s using their personal device to communicate,” Allen said. “Are we going to allow processes to stay in the Dark Ages? Or are we going to require full transparency with checks and balances?”

The State Records Committee unanimously sided with Utah County, noting county officials had done all they could to obtain text messages between Lee and Losee. Those texts are ultimately not something the county can access, review or even prove exist, the committee found.

“We don’t set policy, and we don’t tell [governments] how they should administer their records system,” said committee member Nancy Dean. “That’s unfortunate.”

But committee members said the county should change its policy in line with Allen’s arguments.

“I would highly encourage you to find a way to address this,” Dean told the deputy Utah County attorney. “If [Lee] is not using any other device but that cellphone ... it leads me to believe the public’s business is taking place on his device and that those records do need to be maintained.

Committee member Tom Haraldsen, a news media representative, said elected officials shouldn’t look at the decision as a “pass” on whether they have to turn in communications on their private devices.

“I‘m unhappy about the fact that we don’t have a conclusion other than this one,” Haraldsen said.

Reached by phone Friday, Allen said that although the committee’s ruling wasn’t in his favor, he still considered it a win.

“The beauty is, the county’s attorney admitted they don’t have a process in place,” Allen said. “...We’ve identified there’s a problem: We don’t have a [text message] retention plan, and there’s a lot going on under the bridge. Now, can we fix it?”